This Report contains the Committee’s review of the following treaty actions:
Agreement between Australia and the Oriental Republic of Uruguay on the Promotion and Protection of Investments (Canberra, 5 April 2019);
United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 10 December 2014); and
Convention establishing the Square Kilometre Array Observatory (Rome, 12 March 2019).
Australia’s approach to investment treaties has evolved over time. To reflect these changes, the government has undertaken reform including updating older style treaties so that they align with Australia’s modern investment treaty practices. The Agreement between Australia and the Oriental Republic of Uruguay on the Promotion and Protection of Investments is part of these efforts. The Agreement replaces a ‘broadly drafted’ 2002 bilateral investment treaty. Updated provisions include explicit procedural and substantive safeguards for investor-state dispute settlement (ISDS).
The need for greater transparency in relation to ISDS proceedings has been a longstanding matter of public concern. The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the Convention) will enhance transparency and public accessibility to ISDS arbitrations by allowing for the existing UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration to apply to a wider pool of investment treaties.
The Rules on Transparency currently apply to ISDS arbitrations initiated under investment treaties concluded from 1 April 2014. They provide for increased transparency such as the publication of case related information and for arbitration tribunal hearings to be made public, noting that these measures are also subject to exceptions for confidential or protected information. Once ratified, the Convention enables the Rules on Transparency to apply to ISDS arbitrations initiated under investment treaties concluded prior to 1 April 2014. The Convention will update Australia’s network of older-style bilateral investment treaties and bring them into line with the modern transparency provisions of more recent FTAs.
The Convention establishing the Square Kilometre Array Observatory provides for the establishment of the governing body of the Square Kilometre Array Observatory (SKAO). The Square Kilometre Array (SKA) project began in the early 1990s and is an international partnership to build and operate the world’s largest, most advanced radio observatories. The governing body, the SKAO Council will be responsible for the overall strategic and scientific direction of the project including policies, rules, regulations and the budget. Australia’s involvement in the project is expected to provide a range of benefits including reinforcing Australia’s commitment to international cooperation in scientific and technological fields.
The Committee recommends binding treaty action be taken for each of the treaties under consideration.